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Sometimes, Lobbyists Strive To Keep Public in the Dark

On a February morning two years ago, lobbyists from throughout the country gathered at the Colony Beach and Tennis Resort in Longboat Key, Fla., to share the secrets of their successful lobbying campaigns.

Among the first speakers was Neal M. Cohen of Apco Associates, a Washington firm that had been working behind the scenes for years for clients seeking to limit damages in lawsuits. He regaled the group with tales of hapless reporters and public relations coups, but he underscored a serious theme: the importance of keeping the public in the dark about who the clients really are.

Mr. Cohen is a specialist in "grass-roots" lobbying, a Washington term for a technique often used to camouflage an unpopular or unsympathetic client. Typically the client, often a large business, hires a Washington firm to organize a coalition of small businesses, nonprofit groups and individuals across the nation. The coalition draws public sympathy for the legislation sought by the original client, who recedes into the background.

This week, Mr. Cohen and Apco have reached the culmination of one of the most elaborate grass-roots campaigns since the technique was developed a decade ago. The focus of that campaign, a bill to impose the first nationwide limits on liability lawsuits, is scheduled for a Senate vote in the next few days.

The fate of the legislation is unclear. On Saturday, President Clinton said he would veto the bill if it reached his desk in its current form, and it is not known whether the measure has enough support in Congress to overcome a veto. Still, in Congress, in state legislatures and in the Presidential campaign, the issue has gained more prominence in the last year than ever before, in large part because of the activities of a coalition Mr. Cohen helped develop.

Mr. Cohen will not say who his clients are, other than the coalition, the American Tort Reform Association. It, in turn, calls itself a broad-based national coalition of local organizations, large and small businesses, school boards and others.

But the legislation that will go to the Senate floor would do little for most of those in the coalition, like the school board or Little League team afraid of being sued. The legislation would limit only product liability lawsuits, claims that a poorly manufactured or dangerous product has caused an injury. So if the bill becomes law, the victors will largely be tobacco companies, manufacturers and insurance companies.

Opponents of the measure, like the Trial Lawyers Association of America and Public Citizen, a public-interest lobbying group, say the big companies have been paying the bills for tort law changes for years, while hiding behind the members of the association they helped to create.

Few public records exist to show who pays for such a campaign, but a recording of Mr. Cohen's speech, given to The New York Times by Public Citizen, suggests that a few large companies paid for and called the shots in the movement to change tort laws, both in Washington and in a number of state legislatures.

In an interview last week, Mr. Cohen said that he had not realized that his speech was being recorded, and that he was not advocating that lobbyists "obfuscate" who their clients are. "My job is to make the message more attractive to the public," he said. If a client has an obviously negative public image, he said, "I find other allies who support the bill in an honest way."

But the recording provides an unusually candid description of how a major grass-roots campaign is run.

As an example, Mr. Cohen dissected for the group the successful campaign for tort overhaul in Mississippi. In 1993, he said, he began a blitzkrieg public attack on "greedy" trial lawyers, on behalf of a coalition he called "Mississippians for a Fair Legal System." He advertised for members with an 800 number on billboards carrying slogans like "Fairness, Yes. Greed, No."

To get the attention of the press, he hired a local professor to do a study that said more money was being spent on the tort system in Mississippi than on education.

In one television advertisement, the announcer concluded by saying: "Lawyers are more interested in turning any opportunity into a windfall. If they win, a lot of the money ends up in their pockets."

Within four weeks, he said, the coalition had 1,200 members, including nonprofit agencies, schools, businesses and people who felt they had been victimized by frivolous suits.

"We used every campaign tactic we had in order to bring in as many people," he said. "And we made sure that it was typical people mixed in with large employers and political contributors." It cost nothing to join, he added. "You just had to sign your name on a form that said you're a member."

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The sudden, concerted effort took Mississippi lawyers "completely by surprise," Mr. Cohen told the group. "They didn't really know who was at the heart of everything, and there were no reporting requirements." The lawyers could not figure out who was behind the attacks, he said, because, in the end, "we have 1,500 Mississippians mixed in with who our clients were."

The trial lawyers "caved in," he said. "We had divided them from the victims, and the media took our side, and their money became radioactive."

Joan Claybrook, the president of Public Citizen, said the tort movement had recruited members only as window dressing. "A lot of the behind-the-scenes financing is coming, we believe, from insurance and tobacco and other industries," she said.

Sherman Joyce, the president of the tort association, declined to say what companies or industries had paid significant amounts to push the legislation. He said the association was committed to continuing its fight for changes that would help all its members, not just those who wanted product liability legislation.

But he added, "Politics is the art of the do-able." Mr. Joyce said it might be easier for Congress to justify a product liability law than a law that would limit all damage suits in state courts. Besides, he said, groups like Public Citizen try to keep trial lawyers in the background of the debate, when it is the trial lawyers who are behind the opposition to overhauling the tort system.

The move to overhaul the nation's liability laws began in earnest in 1986, when a group of engineers, led by James K. Coyne, a former Republican Congressman from Pennsylvania, started the American Tort Reform Association. The engineers were unhappy with the number of lawsuits being filed against them and their companies over things like people tripping on badly maintained sidewalks that they may have designed years earlier, Mr. Coyne recalled last week.

Mr. Coyne and the other founders wanted to fight what they viewed as the pervasive influence of trial lawyers in politics, he said. There were construction-related companies, doctors, nurses, optometrists, nonprofit groups and manufacturers among the members. The founders discouraged participation by corporate lawyers, the insurance industry and tobacco interests, he said.

"We were focused not just on product liability," Mr. Coyne said. "We were concerned about the Little League that was being sued."

But many corporate lobbyists joined the group with their own agendas, he said. "The products folks only wanted to achieve product liability legislation," he said, "and the products guys had the bigger budgets."

So two years after Mr. Coyne started the association, he left. It was about that time that the coalition hired Apco Associates, then a subsidiary of Arnold & Porter, the influential Washington lobbying firm.

Today, the tort association has more than 300 members and has helped push through legislation in several states. On its membership list are companies like Aetna, Philip Morris and Pfizer as well as the American Camping Association, the American Council on Education and the Roller Skating Association. But, as Mr. Cohen told his colleagues, broad-based membership can be a blessing and a curse. He warned against confusing broad-based membership with broad-based leadership.

"If you join a coalition and you contribute significant money to a coalition, you'd better be at the table when the decisions are made," Mr. Cohen said. "Broad-based membership is: 'What does the public see? What do the legislators see?'

"In a tort reform battle, if State Farm -- I think they're here, and Nationwide -- is the leader of the coalition, you're not going to pass the bill. It is not credible, O.K., because it's so self-serving. That's why the clients came to me and said, 'We've got to pull away from this.' "

For his final piece of advice, Mr. Cohen summed up the two reasons for starting a grass-roots campaign: when a client cannot get legislation passed on its own, and when an issue is already popular enough that forming a coalition makes the client more powerful. "I guess to simplify," he said, "one is for cover and the other is for strength."